The Supreme Court Is Wising Up on Digital Privacy

While much of Washington grapples with a handful of newly-minted Supreme Court decisions focused on social and campaign finance reform, three largely overlooked court decisions signal a much larger tidal wave of change ahead for the tech community. Taken together, these cases shed light on the court’s views of how the Fourth Amendment’s protections of searches and seizures are complicated when much of our personal information is now digital.

The turning point for tech began in 2012 with United States v. Jones, in which the court ruled that attaching a GPS device to a car and monitoring its movements constitutes a search under the Fourth Amendment. This year, the court issued a single opinion on two more cases, Riley v. California and United States v. Wurie, finding that police enforcement must obtain a warrant in order to search digital information on a cell phone seized from an individual at the time of the arrest.

In delivering the court’s unanimous opinion in Riley, Chief Justice John G. Roberts Jr. noted that for many Americans, today’s smartphones hold the “privacies of life,” adding that the American Revolution itself was predicated on opposition to illegal searches. Chief Justice Roberts also highlighted the difficulty of setting legal precedent on technologies that won’t be outstripped by innovation. “A smart phone of the sort taken from Riley was unheard of ten years ago,” he wrote. Technology is evolving too quickly for a single case to concretely set precedents that will still be relevant 30 years from now. Imagine attempting to apply a court ruling on cassette tapes or mini disks (remember those?) from twenty-years ago to a case today involving digitally downloaded songs. These technologies are no more applicable today than digital downloads will be in 30 years.

As we enter an increasingly digital world, a period in which the Internet of Things is poised for explosive growth, it’s reassuring to see that today’s court is equipped to handle cases related to digital privacy. These cases are more than just ruling on a singular issue like digital privacy. They are about how courts should approach aspects of our daily lives that are impacted by and through the use of technology. These cases – and the hundreds that are sure to follow them – foreshadow how our digital lifestyles will put to the test long-held values and social norms.

We now live in both a physical and digital realm. The strict parameters we once used to define privacy aren’t sustainable in a world increasingly defined by this dual existence. Our new paradigm will be much more fluid – and require a more fluid approach. That is precisely where the Supreme Court is leading us.

This year, privacy lives on your cellphone. Next it will be wearables, which offer even greater capture, recognition and recording functionality, deepening the digital well. Sometimes the lasting legacy of landmark court opinions isn’t immediately apparent, but technological innovation evolves along a continuum.

The Supreme Court’s opinions in this recent spate of tech cases confirm the justices recognize how quickly the technological landscape is evolving. It’s impossible to draw hard lines in the sand, knowing that these hard lines – even though they’re digitally drawn – may not apply to future technologies.

Shawn DuBravac is the chief economist of the Consumer Electronics Association, the U.S. trade association representing more than 2,000 consumer electronics companies. Follow him at @Twoopinions.

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